United States v. Mary Wesley

Case: 12-60007 Document: 00512057055 Page: 1 Date Filed: 11/19/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 19, 2012
No. 12-60007
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
MARY WESLEY, also known as Mary Wesley Brown, also known as Mary
Brown,
Defendant–Appellant.
Appeals from the United States District Court
for the Northern District of Mississippi
USDC No. 4:09-CR-49-3
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Following a jury trial, Mary Wesley was convicted of one count of
conspiring to defraud the United States Government and four counts of fraud
and false statement. She was sentenced to serve 120 months in prison as well
as a three-year term of supervised release and was ordered to pay $5,570,945 in
restitution. In this appeal, she attacks both her convictions and her sentence.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-60007 Document: 00512057055 Page: 2 Date Filed: 11/19/2012
No. 12-60007
First, Wesley challenges the sufficiency of the evidence to support her
convictions. Because she moved for a judgment of acquittal at the close of the
Government’s case and presented no evidence herself, our review is de novo. See
United States v. Resio-Trejo, 45 F.3d 907, 910 & n.6 (5th Cir. 1995). When
considering a sufficiency claim, the pertinent query is “whether any reasonable
trier of fact could have found that the evidence established the appellant’s guilt
beyond a reasonable doubt.” United States v. Jaramillo, 42 F.3d 920, 922-23
(5th Cir. 1995) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This court
considers “the evidence in the light most favorable to the [G]overnment with all
reasonable inferences and credibility choices made in support of the verdict.”
United States v. Jones, 133 F.3d 358, 362 (5th Cir. 1998) (per curiam) (quoting
United States v. Ivy, 973 F.2d 1184, 1188 (5th Cir. 1992)) (internal quotation
marks omitted).
Application of these standards to the record shows that Wesley’s
sufficiency claim is unavailing. Witness testimony established that Wesley and
her employees knowingly and voluntarily agreed to act illegally by filling out and
submitting fraudulent tax returns and that they took actions in pursuit of this
goal. This testimony suffices to uphold Wesley’s conspiracy conviction. See
United States v. Brooks, 681 F.3d 678, 699 (5th Cir. 2012), petition for cert. filed,
No. 12-5812 (U.S. Aug. 9, 2012), petition for cert. filed, No. 12-218 (U.S. Aug. 16,
2012), and petition for cert. filed, No. 12-5847 (U.S. Aug. 16, 2012). Trial
testimony also showed that Wesley prepared returns that listed two fictitious
dependents and that she gave her client the names of these dependents in
exchange for $1000. This evidence suffices to uphold Wesley’s convictions for
fraud and false statement. See United States v. Clark, 577 F.3d 273, 285-86 (5th
Cir. 2009). Wesley has not shown that the evidence adduced at trial was
insufficient to support her convictions.
Likewise, she has not shown any error in connection with her sentence.
Her argument that she should be held responsible for, and her sentence should
2
Case: 12-60007 Document: 00512057055 Page: 3 Date Filed: 11/19/2012
No. 12-60007
be based on, the actual loss associated with her crimes and not the intended loss
runs counter to this circuit’s jurisprudence. See United States v. Phelps, 478
F.3d 680, 682 (5th Cir. 2007); United States v. Moore, 997 F.2d 55, 59-62 (5th
Cir. 1993). Finally, her challenge to the district court’s calculation of the amount
she owed as restitution is likewise unavailing because our review of the record
shows no abuse of discretion in connection with the district court’s restitution
calculations. See United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009);
United States v. Gutierrez-Avascal, 542 F.3d 495, 497 (5th Cir. 2008).
AFFIRMED.
3